Hughey v. Warner

Mr. Justice Neil delivered the opinion of the Court. In this ease there was a controversy between the surviving husband and the sister of his deceased wife over certain items of personal property consisting mainly of jewels, and an insurance fund belonging to the wife which she had deposited in bank. This fund had arisen under a policy which had been effected on the life of her first husband. The wife left a will by which she attempted to bequeath all of her property to her sister to the exclusion of the husband, and he brought his bill in the Shelby county [727] chancery court to have his rights declared, and to recover the property. The chancellor decreed in favor of the hnsband as to all of the property, and from this decree the defendant appealed. The rights of the parties should be settled upon the following principles: 1. Leaving out of view all other grounds, we are of the opinion that the insurance money, or fund, in question, deposited in bank, belonged to the wife as her separate estate, in the very nature of the property, arising as it did from an insurance effected on her first husband’s life in favor of the wife. Prima facie such insurance was procured by the husband, or with his consent, as a settlement on the wife. We cannot suppose that she would raise such a fund on the life of her husband without his knowledge and consent. That such a fund is separate estate see the following authorities: Scobey v. Waters, 10 Lea, 562, 563; Southern Life Insurance Co. v. Booker, 9 Heisk., 607; Cyc., vol. 21, pp. 1370, 1371; and see Gosling v. Caldwell, 1 Lea, 454; 21 Cyc., p. 1370. 2. Being separate estate, the jus disponendi would exist, and the wife could dispose of it by will so as to defeat the right which the husband would have to succeed to it as husband, if it were not so disposed of. Fettiplace v. Gorges (1789), 1 Brown Chy., 6-8; same case, 1 Ves., Jr., 46; Taylor v. Meads, 4 De Gex, Jones & Smith, 597, 605; Schouler on Wills, 1st Ed., sec. 51, p. 50, sec. 52, p. 52, sec. 54, pp. 53, 54; Underhill [728] on Wills, vol. 1, sec. 121, p. 172. And see our own eases as follows: Perry v. Gill, 2 Humph., 218, 223; Williford v. Phelan, 120 Tenn., 589, 597; also Pritchard on Wills, sec. 86, p. 92. 3. The ease of Hays v. Bright, 11 Heisk., 325, interposes no objection. The settlement under consideration in that ease confined the power of disposition to sale. This necessarily excluded the power of disposition by will. 4. The eases of Hamrico v. Laird, 10 Yerg., 222; Brown v. Brown, 6 Humph., 126; Handwerker v. Diermeyer, 96 Tenn., 619, and Weakley v. Woodard, 2 Tenn. Chy. App. Rep., 589, 590, likewise interpose no objection. These were eases wherein it appeared the wife died intestate. The law is clear that the husband will in such cases take her separate property unless the instrument creating it cuts off his right beyond her death. 5. Although the insurance was collected on a policy issued on the life of a former husband, and the quality of separate estate usually ceases, or is suspended during widowhood, yet upon the occurrence of a subsequent marriage, it revives. Pooley v. Webb, 3 Cold., 603; Beaufort v. Collier, 6 Humph., 492; Sehouler on Husband and Wife, sec. 197. 6. The chancellor’s decree was erroneous as to the insurance money deposited in bank, and will be reversed to that extent. As to the other personal property, the decree will be affirmed. 7. Divide the costs equally.